Partly allowed

Narayan G.Agarkar v. Nashik Municipal Corporation

Bombay HC11 Sept 2014WP/5018/2006

Case brief

AI extract

What is this about?

Petitioners challenged an order imposing stoppage of increments and recovery of amounts due to alleged negligence in verifying pole weights. The Court held that stopping increments for five years constituted a major penalty requiring a mandatory enquiry under Rule 10 of the Maharashtra Civil Services (Discipline and Appeal) Rules 1979.

What did the court decide?

The order of stoppage of increments for five years dated 27th September 2000 was quashed and set aside. Recovery action is not treated as a penalty.

Narayan G.Agarkar Vs Nashik Municipal… — Labour and Industrial Disputes | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.3202 OF 2004

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Anil Sidram Gaikwad ...Petitioner v/s Nasik Municipal Corporation and anr. ...Respondents

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WITH WRIT PETITION NO.2296 OF 2004

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Devendra Baburao Vanmali ...Petitioner v/s Nasik Municipal Corporation and anr. ...Respondents

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WITH WRIT PETITION NO.5018 OF 2006

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Narayan G. Agarkar ...Petitioner v/s Nasik Municipal Corporation ...Respondent WITH WRIT PETITION 5019 OF 2006 Hemant K. Patil ...Petitioner v/s Nasik Municipal Corporation ...Respondent

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WITH WRIT PETITION NO.5020 OF 2006

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vrd 2 WP3202/04 Bhaskar R. Kathe ...Petitioner v/s Nasik Municipal Corporation ...Respondent

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WITH WRIT PETITION NO.5021 OF 2006

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Vasant Gopalrao Lade ...Petitioner v/s Nasik Municipal Corporation ...Respondent

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WITH WRIT PETITION NO.5022 OF 2006

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Sham Vishnupant Vaikar ...Petitioner v/s Nasik Municipal Corporation ...Respondent

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WITH WRIT PETITION NO.5023 OF 2006

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Sharad P. Bankar ...Petitioner v/s Nasik Municipal Corporation ...Respondent WITH WRIT PETITION NO.5024 OF 2006 Ramakant P. More ...Petitioner v/s Nasik Municipal Corporation ...Respondent

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Mr Tejpal S. Ingale for Petitioners. Mr M.L. Patil for Respondents.

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CORAM : NARESH H. PATIL AND B.P. COLABAWALLA JJ.

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DATE : 11TH SEPTEMBER 2014 .

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ORAL JUDGMENT (PER NARESH H. PATIL J.) :-

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The Petitioners seek to challenge the impugned order No.800 dated 27^th September 2000 passed by the Respondent No.2 imposing punishment upon them of recovery of alleged loss caused to the Respondent No.1 and stoppage of five increments. The Petitioners at the relevant time were discharging duties as Junior Engineer, Assistant Engineer and Executive Engineer with the Respondent – Corporation. During the pendency of these Petitions, the Petitioners in Writ Petition Nos.5018, 5020 and 5024 of 2006 have retired from service. The Respondent No.1 – Corporation executed a project in the Electrical Department as proposed by the Executive Engineer on the recommendation of the Chief Engineer. The said project papers were submitted to the Respondent No.2 herein – Commissioner of Nasik Municipal Corporation. After getting approval from the Respondent No.2,

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the Executive Engineer, with the help of Deputy Engineer, issued tender for the same. The work was assigned to the successful bidder / tenderer who had quoted lowest price. It is submitted that prior to 23^rd March 2000, no specification as regards to weight of the electrical poles was provided in the work order neither there was a practice or procedure to verify the weight of the poles to be erected. For the first time, the Executive Engineer by Circular No.21 of 2000 dated 23^rd March 2000 communicated that the weight of the poles was required to be checked. The entire work performed by the contractor was verified by the Deputy Engineer and Junior Engineer. The bills of the contractor were forwarded to the Deputy Engineer for further action.

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The Commissioner issued notice to the Petitioners alleging therein that the weight of the poles erected by the contractor was less than 30 % to 40 % as compared to the poles used during the years 1998-99 and 1999-2000. It was alleged that the Petitioners failed in their duties to verify the material before recommending payment for the work done. The acts of the Petitioners amounted to negligence in performing duties. At

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one point of time, the Petitioners alleged that they were threatened with dire consequences of initiation of criminal proceedings. The Petitioners were called upon to give explanation within three days from the receipt of notice dated 10^th July 2000. The Petitioners replied to the notice on 13^th July 2000. They submitted their explanation. Another notice was issued on 7^th August 2000 reiterating therein similar allegations made against the Petitioners. The respondent No.2 passed an order dated 27^th September 2000 imposing punishment of stoppage of yearly increment for five years and recovery of amount towards loss caused which figure varies from case to case, from monthly salary of Petitioners in 20 installments. It is submitted that all the Petitioners preferred Appeals to the Standing Committee against the order passed by the Commissioner. The Standing Committee passed Resolution No.1270 dated 13^th February 2001 setting aside the penalties imposed by the Commissioner on the Petitioners on both the counts i.e. recovery of amount and the stoppage of yearly increment. It is the case of the Petitioners that the Respondent No.2 – Commissioner refused to implement the decision of the

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Standing Committee inspite of repeated representations made to the Commissioner by the Petitioners. The Petitioners thereafter decided and approached this Court raising independent challenge to the impugned order passed by the Commissioner which is subject matter of challenge in these petitions.

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Affidavit in reply was filed by the Respondents. The petitions are pending since 2004 onwards.

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The learned counsel appearing for the Petitioners in substance submitted that in view of the provisions of Rule 19 of the Maharashtra Civil Services (Discipline and Appeal) Rules 1979 (for short, Rules 1979) against the impugned order passed by the Respondent No.2 – Commissioner (Appeal) would lie to the Standing Committee being a superior body of the Respondent No.2 – Commissioner. It was submitted that the Commissioner not only disobeyed the decision of the Standing Committee but failed to raise any challenge against the decision of the Standing Committee. Independent of the proceedings initiated before the Standing Committee, the learned counsel raised issue before this

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Court on merits. It was submitted that the monetary loss alleged to be caused to the Corporation was recovered from the contractor. Therefore, it was not necessary, reasonable and proper for the Corporation to recover the said amount from the Petitioners. On that count alone, the order of recovery passed against the Petitioners requires to be quashed and set aside. On the second aspect of the matter, the learned counsel submitted that in view of provisions of rule 10 of the Rules 1979 as the order of stoppage of increments exceeded more than three years in case of Petitioners, it amounted to a major penalty which could be imposed only after holding an appropriate enquiry in the manner laid down in Sub-rules (3) to (27) of Rule 8 of the Rules 1979.

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The learned counsel appearing for the Respondent – Corporation submits that in view of provisions of section 56(4) (d) of the Maharashtra Municipal Corporation Act, remedy of appeal has been prescribed in cases of dismissal, removal and reduction in salary and in no other case an employee like the

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Petitioners is entitled to file Appeal.

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In connection with the provisions of section 56(4), the

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Standing Committee is deemed to be authority immediately superior to the Commissioner. Therefore, according to the learned counsel, the Petitioners could not have approached the Standing Committee against the impugned order passed by the Commissioner. The learned counsel fairly submitted that the amount of monetary loss caused to the Corporation was calculated and recovered from the contractor but the Corporation thought it fit that considering the nature of work executed and the monetary loss caused, recovery ought to have been made from the Petitioners too. Therefore, appropriate orders were passed after verifying the material placed before the Commissioner for recovery of said amount from Petitioners. The learned counsel submits that the recovery had already been made after passing of the impugned order. In respect of the second issue raised by the Petitioners regarding holding of appropriate enquiry, considering the stoppage of increments for more than five years, the learned counsel submits that the provisions of law are clear and in view of provisions of rule 10(2), the enquiry could have been conducted. The learned counsel submits that

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in view of the peculiar facts of this case, no interference is warranted as the Corporation was convinced that it was a fit case for imposing penalty of stoppage of increments.

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We have perused the relevant provisions of law including provisions of section 56 and 481 of the Maharashtra Municipal Corporation Act and Rules 9, 10 and 17 of the Rules 1979.

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In the facts of the case, we find that the Commissioner verified the record and took a decision that monetary loss was caused to the Corporation, therefore appropriate proceedings in respect of recovery of amount were initiated. It is now admitted fact that the amount was recovered from contractors at the relevant time and soon after passing of the order by the Commissioner, the amount was recovered from the Petitioners, which varies from Petitioner to Petitioner. The learned counsel appearing for the Petitioners submitted that as the Corporation had recovered the amount from the contractor, no further recovery could have been made from the Petitioners. The

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argument sounds attractive but if the Commissioner taking into consideration in its entirety the facts and the record, decided that financial loss was caused to the Corporation, he had taken decision to initiate proceedings for recovery of the amount and accordingly recovery was also done. The learned counsel submits that in view of the interim order passed by this Court, the order of stoppage of increment was not implemented in case of the Petitioners. In the facts of the case, we are not inclined to interfere with that aspect of the matter.

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The next issue requires consideration by this Court which relates to the submission as to whether under the existing provisions of law and the rules, enquiry ought to have been conducted in accordance with the provisions of the Rules 3 to 27 of Rule 8 of the rules 1979. The order of stoppage of increment for more than five years in our view, amounts to imposition of major penalty. The Petitioners are right on this count that in the absence of holding any enquiry as mandated by law, the orders gets vitiated.

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After perusing the provisions of Rule 10, we are

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convinced that the objection raised by the Petitioners requires to be upheld.

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We are therefore of the view that the order passed by the Commissioner directing stoppage of increment for five years against the Petitioners was contrary to the mandatory provisions and procedure established by law as stated above. In the absence of holding of enquiry, passing of order of stoppage of increment for five years being contrary to law, we quash and set aside the order passed by the Commissioner directing stoppage of increment for five years by order dated 27^th September 2000. In the peculiar facts and circumstances of the case, we observe that the action of recovery of amount which had already been recovered from the Petitioners shall not be construed to be a penalty or adverse remark against the Petitioners. The same shall not adversely affect their service career prospects, if any.

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Rule is partly made absolute in the above terms. No costs.

Narayan G.Agarkar v. Nashik Municipal Corporation

Case brief

What is this about?

What did the court decide?

Narayan G.Agarkar v. Nashik Municipal Corporation

Case brief

What is this about?

What did the court decide?

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